1995 PLP 1452 (MLD)

RAO NAEEM HASHIM KHAN, J.‑‑‑Khalid alias Khalu (24) was sent up for trial by Police Station, Jahanian, District Khanewal, for an offence under section 302, P.P.C. Learned Sessions Judge, Khanewal vide judgment dated 26‑8‑1991 convicted him and sentenced to death with fine of Rs. 20,000 or in default to undergo two years R.I. The amount of fine, if recovered from the convict Khalid alias Khalu would be paid to the heirs of Ahmad Ali deceased as compensation under section 544‑A, Cr.P.C. The convict has appealed while State has sought confirmation of death sentence through Murder Reference No. 362/91. Both matters will be disposed of by this judgment.

2. The facts of the prosecution case are that Muhammad Shah complainant P.W. 7, father of Ahmad Ali deceased of this case got recorded F.I.R. No. 49 Exh. PE on 6‑2‑1990 at 4‑30 p.m. at Police Station, Jahanian, District Khanewal under section 302, P.P.C. which was recorded by Abdul Wahid S.I./S.H.O., Police Station, Jahanian P.W. 4, wherein he narrated that he was a resident of Chak No. 136/10‑R. On that day (6‑2‑1990) at 2‑15 p.m. he had gone to Mauza Thatha Sadiqabad alongwith his son Ahmad Ali (deceased of this case) to purchase household articles. They went to the bazar and purchased the articles. They reached in a bazar near Khankah Sadiq Shah Bukhari Sahib at about 3‑30 p.m. There emerged Khalid alias Khalu accused son of Muhammad Yousaf resident of Chak No. 126/10‑R from the eastern street who was known to them earlier and was armed with a knife. At that time Khalid alias Khalu accused raised Lalkara that he would teach them a lesson for reporting to the police against his brother Toti and others about the theft of the motor‑cycle. He gave a knife blow on the left side of the chest of his son Ahmad Ali, the second blow on his back and third blow on his right eye. Ahmad Ali fell on the ground in a pool of blood and wriggled. Muhammad Saleem P.W. 8 and Shah Muhammad P.W. (not produced) both residents of Chak No. 136/10‑R were also present close by in the same bazar who also saw the occurrence. They all attempted to catch hold of Khalid accused but he threatened them and made good his escape alongwith the knife. The cause of occurrence was that motor‑cycle of Ahmad Ali (deceased) was stolen by (brother of Khalid accused) with Khalid Mahmood Arain and Ahmad Ali and matter was reported by his son Ahmad Ali to the police upon which the said accused were challaned and Khalid alias Khalu nursed the grudge against Ahmad Ali. The ocular account was furnished by Muhammad Shafi P.W. 7, Muhammad Saleem P.W. 8 and Abdul Wahid S.I./S.H.O. P.W. 4 who investigated the case.

3. After recording the F.I.R. Abdul Wahid S.I./S.H.O. Police Station, Jahanian P.W. 4 reached the place of occurrence. He took into possession dead body of Ahmad Ali deceased. He prepared injury statement Exh. PB and inquest report Exh. PC. He sent the dead body to Civil Hospital, Jahanian for post‑mortem examination alongwith the injury statement and inquest report through Muhammad Saleem, Constable P.W.

9. He made spot inspection and took into his possession blood‑stained earth vide memo. Exh. PF attested by Muhammad Saleem P.W. 8 and sealed the blood‑stained earth into a parcel on 7‑2‑1990 Muhammad Saleem Constable P.W. 9 produced before him last worn blood‑stained clothes Pl to P5 of Ahmad Ali deceased which the Medical Officer had handed over to Muhammad Saleem Constable after post‑mortem examination. He took the same into his possession vide memo. Exh. PC attested by Muhammad Saleem P.W.

8. On the same day he handed over the sealed parcel containing the blood‑stained earth to Aman Ullah Moharrir Head Constable P.W.

11. On 11‑2‑1990 he arrested Khalid alias Khalu accused. He obtained his physical remand in accordance with law. On 14‑2‑1990 while in police custody Khalid alias Khalu led to the recovery of blood‑stained knife P6 from the Bhana (cattle‑shed) of his Dera situated in Chak No. 126/10‑R which he took into his possession vide memo. Exh. PH on which he prepared Khaka Exh. PH/1 of knife P

6. He prepared site plan Exh. PH/2 of the place of recovery. He sealed blood‑stained knife P6 into a parcel and handed over the same to Aman Ullah Moharrir, H.C. P.W.

11. He got prepared site plan Exh. PD, Exhs. PD/1 and PD/2 by Muhammad Razzaq, Draftsman Khanewal P.W.

2. On 7‑2‑1990 at 8 a.m. Dr. Abdul Haq, Senior Medical Officer, Civil Hospital, Jahanian, District Khanewal P.W. 1 conducted post‑mortem examination on the dead body of Ahmad Ali.

4. At the conclusion of the prosecution evidence the appellant was examined without oath. He refuted the allegations and pleaded innocence. However, he neither appeared in his defence on oath nor produced defence witnesses.

5. It is submitted by the learned counsel for the appellant that all P.Ws. were interested being related to the deceased Ahmad Ali inter se; that four eye‑witnesses including father Muhammad Shaft complainant could not apprehend one person (Khalid accused) who was inflicting injuries to the deceased Ahmad Ali, moreover, it appears unnatural that real father could be restrained to intervene through threats; that the presence of eye‑witnesses could be ruled out; because the occurrence took place in bar, independent witnesses were available but they were neither cited nor produced by prosecution at the time of trial; that motive was not proved directly against the appellant; that if the appellant had any intention to kill he would have chosen some deserted area as the venue of the occurrence; that it Was not a case of capital punishment and requested for taking lenient view 41 favour of the appellant.

6. The contentions are opposed by the learned State Counsel. We have heard arguments and gone through the file. The prosecution in order 46" establish its case had mainly relied upon ocular account furnished by Muhammad Shafi P.W.7, Muhammad Saleem P.W.8. Both of them had given detailed account of occurrence ascribing specific role to the appellant. Each of them stated that Muhammad Shafi and Ahmad Ali (deceased) were going in bazar for purchase of articles. Khalid alias Khalu appellant emerged, raised Lalkara and inflicted knife blows on the body of Ahmad Ali, who ultimately succumbed to his injuries. The occurrence was also witnessed by Muhammad Saleem P. W 8 and Shah Muhammad P.W. (not produced). Both the witnesses were subjected to the test of lengthy cross‑examination but nothing could be brought on the record to suggest that they were not present at the spot or had not witnessed the occurrence. Therefore, it is safely held that the witnesses were present at the spot. Muhammad Shafii P.W.7, Muhammad Saleem P.W.8 though related to the deceased but they are not inimical towards the appellant (Khalid). There is no cogent reason for not believing them. Moreover, father cannot substitute for the murder of his son. We, therefore, hold that B prosecution has proved its case beyond ‑ shadow of doubt against appellant (Khalid). Khalid alias Khalu is guilty of offence under section 302, P.P.C. Since the motive is not directly against the appellant, therefore, taking a lenient view death sentence is reduced to life imprisonment and rest of the sentence is maintained. The appeal is dismissed and death sentence is not? confirmed. The benefit of section 382‑B, Cr.P.C. is also given to the appellant N.H.Q./K‑179/ L???????????????????????????????????????????????????????????????????????????????? Sentence reduced.